In his State of the Union speech, President Obama gave a nod to undocumented young people, and indicated his administration is making pinpointed immigration fixes because Congress doesn’t have an appetite for comprehensive reform.
Speaking a few days later to a Latino audience on Univision, the Spanish-language TV network, he again touted his administration’s changes to deportation policy.
“Some of the changes that we’re making on immigration, we’re trying to make sure that we’re prioritizing criminals [for deportation],” Obama said. Under the Obama administration, there have been a record number of deportations.
The president was referring to an Immigration and Customs Enforcement (ICE) policy that recently affected Peruvian immigrants Michell and Yasser Valle. The brothers narrowly escaped the chilling prospect of deportation, enabling them to spend Thanksgiving with their family in New Jersey.
ICE revived the use of prosecutorial discretion this fall, citing that with limited resources, the federal government should apply “smart” immigration enforcement and focus on offenders who are serious criminals as opposed to undocumented students with no criminal history. Immigration judges had at times used prosecutorial discretion before, but under this new push 300,000 deportation cases went up for review.
Advocates argued the Valles were clearly eligible for a waiver under the policy: They have no criminal history, they have ties to the community (they entered the U.S. at the age of five and six), and have immediate family members who are U.S. citizens or permanent residents. The brothers are also pursuing a college education and meet other conditions that are spelled out in the Morton Memo, the June 17, 2011 letter issued by ICE Director John Morton to ICE field officers, agents and attorneys, laying out the new policy.
Even though the Valles met ICE requirements, Gaby Pacheco, coordinator of the End Our Pain campaign of the United We Dream organization, said it took several months of “advocacy, putting pressure and using media” to nudge ICE officials in New Jersey to reopen the case. Ultimately their petition was granted and the Valles were given a one-year stay from deportation. During this time they were able to return to school, get employment authorization documents and apply for driver’s licenses. They have the option to file for an extension of their deportation hold, but what’s important, Pacheco told Fi2W, is, “They are doing things the legal route.”
Two cities became pilot areas for a test of the new policy from November 2011 to January 2012. ICE officers, agents and lawyers in Denver and Baltimore underwent training on the use of the policy following the roadmap provided in the Morton Memo.
“In Denver, the courts were closed down so they had time to review how to handle the cases,” said Denver lawyer Laura Lichter, president of the American Immigration Lawyers Association.
“They looked at every case, putting them in files — positive, negative, serious criminal history or bad immigration in one pile, positive factors like [immigrants] coming to school here, with ties to community, with family ties to people who are green card holders or members of the armed forces, or have young children in a different pile,” she said. “They were looking at 8,000 cases.”
Reports on Denver’s pilot program show that about 16 percent of the cases were recommended for closure. The results are preliminary, Lichter stressed. In some cases, prosecutorial discretion simply took cases out of court dockets for review but did not resolve or close them.
“They can be put back in the dockets,” according to a lawyer who spoke at an immigration briefing on the policy, voicing his concerns about accountability and transparency. “There is very little public information on what the DHS is doing with these cases.”
The new policy has not escaped backlash, even within ICE. Despite the Morton Memo, not all ICE officers have received training, because an ICE union leader opposes the policy.
It comes down to limited government resources for deportation, advocates say. “Let’s make sure we go after the truly dangerous ones,” Lichter said. “If you have 400,000 seats on the bus, who would you rather get a seat: a bank robber, a drug dealer, a gang member or would you be going after a college student who was brought here when he was 3 years old who doesn’t have a criminal record and whom we want to be part of our community?”
For the Valle brothers, it’s a relief to be out of detention. But they are still stuck in an immigration no-man’s land. Despite being granted a reprieve from immediate deportation, they do not have permanent legal status.
Feet in Two Worlds is supported by the New York Community Trust and the John S. and James L. Knight Foundation with additional support from the Mertz Gilmore Foundation and the Sirus Fund.